As of today, the United States has used its Guantanamo Bay facility for 16 years to detain people it alleges pose a security threat without charge or fair trial. The number of people locked up has been reduced from 780 at the peak to 41, but even they should not be there. Of those, 31 have been held for years without charge or trial and the remaining 10 face charges before military commissions that do not meet fair trial standards and should not be used.
The story of Guantanamo is not pretty. Initially, US government officials claimed that those being held there were “the worst of the worst.” But over the years we learned that there is no reliable evidence that many of these men were involved in terrorism, raising serious doubts about whether they should have ever been taken into custody, let alone detained at Guantanamo for all these years.
Ridah Bin Saleh al-Yazidi, a 52-year-old Tunisian, has been at Guantanamo since the day it opened on January 11, 2002. A 2007 US military assessment accuses him of being an al-Qaeda member and having ties to its leadership. But these assessments have proven unreliable, containing information derived from torture, or false statements provided by co-detainees eager to curry favor or get better treatment. Both the George W. Bush administration and the Obama administration cleared al-Yazidi for release. He is one of five cleared detainees who remains imprisoned that the Trump administration has made no effort to release.
Sharqawi al-Hajj is among the 26 detainees the US government has not cleared for release and that it claims it may hold indefinitely. He has been at Guantanamo for 13 years but his ordeal began long before. We first documented his case in a 2008 report on US renditions to Jordan between 2001 and 2004 for interrogation using torture. US and Pakistani forces arrested al-Hajj in Karachi in February 2002 and sent him to Jordan, where he was held for nearly two years.
They sent him to a then-secret US prison in Afghanistan, where he was held in complete darkness and isolation for five months, and then transferred him to Guantanamo in September 2004. According to a letter other prisoners managed to smuggle out of the Jordanian prison for him and what he told his lawyer, he was repeatedly tortured and gave his interrogators false information in the hopes that they would stop tormenting him — information that ended up in US military assessments of other Guantanamo detainees.
In 2011, after detainees finally won the right to challenge their detention in US federal court, a judge ruled that statements he made in Jordan or at the US prison in Afghanistan were coerced, unreliable and could not be used against him. By then however he had seen many detainees win at lower-court levels only to have their cases reversed on appeal — including Adnan Latif who died of a drug overdose at Guantanamo in 2012. Al-Hajj said he lost faith in the process, dropped his habeas case, began regular hunger strikes, and became depressed and physically weak.
Last year, with new legal counsel, he decided to challenge his detention once again. That time he went through the Periodic Review Board process, set up by the Obama administration in 2013 to review whether the government continued to believe it was necessary to hold individual detainees. Despite the favorable 2011 ruling barring the use of information obtained during his interrogations, the government appears to have drawn upon the discredited information during the review board process, and rejected his appeal.
Today al-Hajj is frail and in despair. He was hospitalized last summer after he fell unconscious in his cell and currently weighs 107 pounds. In September, his lawyers filed an emergency motion seeking an outside medical examination and his medical records.
There are many more equally disturbing cases at Guantanamo. Though President Trump has not had any new detainees taken to Guantanamo, his administration has also not made any effort to release the cleared detainees or review the cases of others who remain locked up.
We have long argued that if there is credible evidence that detainees committed crimes they should be prosecuted in the federal courts, not the fundamentally unfair military commissions, and without such evidence, they should be released. Holding them indefinitely without charge violates international law, is unjust, and after so many years, inhumane.
A new habeas petition filed by the Center for Constitutional Rights today makes that case. Congress should remove the bar preventing detainees from being transferred to the United States for federal court trials, and press the administration to resolve the other cases. US courts should also no longer permit the government to hold detainees indefinitely as they have in the past. After 16 years, continuing detentions without due process at Guantanamo generates global condemnation that poses a far greater security threat to the US than the release of any one detainee.